Office of the Attorney General
State of Texas

Re: Multiple elections between the Optional Retirement Program
and the Teacher Retirement System.

Dear Representative Massey:

On behalf of the Committee on Public Education you have asked
if a person may again elect to participate in the Optional
Retirement Program--a special program for faculty members of
Texas institutions of higher education--after having been
required, because of a change in employment, to transfer from an
Optional Retirement Program to the Teacher Retirement System.

Participation in the Optional Retirement Program is limited to
'faculty members' as defined in the Texas Education Code. Educ.
Code ss 51.353, 51.352(4). Persons who teach in the public
school system of the state are ineligible for such participation;
they are required to become members of the Teacher Retirement
System as a condition of their employment. Educ. Code s 3.03.

You advise that while employed as a faculty member at a public
institution of higher education, an individual timely elected to
participate in the Optional Retirement Program. Subsequently he
accepted employment as a teacher in the public schools and became
a member of the Teacher Retirement System, as required by law,
terminating his Optional Retirement Program participation. Now,
he has left the public school position and has again become a
'faculty member' within the meaning of the Optional Retirement
Program provisions. He wishes to drop his Teacher Retirement
System membership and resume participation in the Optional
Retirement Program.

An identical situation was considered in Attorney General
Opinion M-1027 (1971) prior to the adoption of title three of
the Education Code. It construed the statutes then in force
(former articles 2922-1i and 2922-1.03, V.T.C.S) to prohibit a
series of elections between retirements systems; it concluded
that persons who leave faculty-member positions to become public
school teachers must at that time become members of the Teacher
Retirement System and must remai Teacher Retirement System
members if they later return to 'faculty member' status. The
opinion was based principally upon the language of the statutes,
anc upon a previous Attorney General Opinion, M-647 (1970), which
held the Optional Retirement Program to be for 'faculty members'
only. Opinion M-647 also held that public school employees who
were former 'faculty members' were not within that definition.

The statutes upon which Attorney General Opinion M-1027 was
based were incorporated into the Texas Education Code as sections
3.03 and 51.355 in substantially unaltered form. The legislative
acts so incorporating them provided that no change in substantive
law was intended, but that only a recodification of current laws
was contemplated. See Acts 1971, 62nd Leg., ch. 405, at 1449;
Acts 1971, 62nd Leg., ch. 1024, at 3072. We noted in Attorney
General Opinion H-371 (1974) that the Legislature, though
presented with several opportunities to change the M-1027 result,
had not done so, and we there reiterated the conclusion that the
statutes allow only a single opportunity to elect between
retirement systems.

Nothing has come to our attention that would require a result
different from that reached by those opinions. In light of the
earlier opinions, the administrative construction and the
Legislature's failure to amend the statute, it is our view that
under the present statute a person may exercise the option to
participate in the Optional Retirement Program only once.

SUMMARY

Under current law a person may exercise the option to
participate in the Optional Retirement Program only once.